Pub Date : 2021-01-02DOI: 10.1080/10383441.2021.1899884
Gareth Lloyd
‘Law is an overwhelmingly linguistic institution’1 and forensic linguistics helps with overcoming language-based discrimination, injustice, and poor practices in the law. As a speech pathologist, I...
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Pub Date : 2021-01-02DOI: 10.1080/10383441.2021.1932646
B. Mitchell
On 1 January 2020, the Human Rights Act 2019 (Qld) (the Act) will commence. It will bind all persons, including the State and to a lesser extent the Commonwealth. It took us 70 years after the 1948 Universal Declaration of Human Rights to legislate in Queensland. We join the ACT and Victoria as the third Australian jurisdiction to protect human rights. The Universal Declaration was born out of the atrocities of the World Wars and was the first truly global human rights document. It is a common standard of achievements and aspirations for all peoples and all nations. It set out the fundamental human rights to be universally protected. The Queensland Act draws on the Universal Declaration and other instruments for its content. It begins by noting that ‘Human rights are essential in a democratic and inclusive society that respects the rule of law.’ The Act cautions that human rights should be limited only after careful consideration, and only where justifiable in a free and democratic society based on human dignity, equality, freedom and the rule of law. Section 3 sets out three main objects, which are like strategic goals:
{"title":"Communication and human rights within speech pathology","authors":"B. Mitchell","doi":"10.1080/10383441.2021.1932646","DOIUrl":"https://doi.org/10.1080/10383441.2021.1932646","url":null,"abstract":"On 1 January 2020, the Human Rights Act 2019 (Qld) (the Act) will commence. It will bind all persons, including the State and to a lesser extent the Commonwealth. It took us 70 years after the 1948 Universal Declaration of Human Rights to legislate in Queensland. We join the ACT and Victoria as the third Australian jurisdiction to protect human rights. The Universal Declaration was born out of the atrocities of the World Wars and was the first truly global human rights document. It is a common standard of achievements and aspirations for all peoples and all nations. It set out the fundamental human rights to be universally protected. The Queensland Act draws on the Universal Declaration and other instruments for its content. It begins by noting that ‘Human rights are essential in a democratic and inclusive society that respects the rule of law.’ The Act cautions that human rights should be limited only after careful consideration, and only where justifiable in a free and democratic society based on human dignity, equality, freedom and the rule of law. Section 3 sets out three main objects, which are like strategic goals:","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"196 - 209"},"PeriodicalIF":1.2,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10383441.2021.1932646","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48449501","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10383441.2021.1899885
Ana Sofia Bruzon
Janny Leung is a gifted writer and an avid observer of international legal orders. She is an expert in the field of linguistic justice and has conducted substantial research on challenges in multil...
{"title":"Shallow equality and symbolic jurisprudence in multilingual legal orders","authors":"Ana Sofia Bruzon","doi":"10.1080/10383441.2021.1899885","DOIUrl":"https://doi.org/10.1080/10383441.2021.1899885","url":null,"abstract":"Janny Leung is a gifted writer and an avid observer of international legal orders. She is an expert in the field of linguistic justice and has conducted substantial research on challenges in multil...","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"187 - 191"},"PeriodicalIF":1.2,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10383441.2021.1899885","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43980618","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10383441.2021.2014773
Benjamin K. Grimes
ABSTRACT In the past decade, there has been noticeable improvement in judicial attention and attitudes towards court interpreters, reflected in the implementation of various court interpreter protocols and the Recommended National Standards for Interpreters in Courts and Tribunals. However, this article identifies a number of discrepancies and gaps that still exist in the court interpreting framework in Australia. There are discrepancies across jurisdictions in the types of matters for which the court takes responsibility for engaging and paying for interpreters, and significantly different service delivery models for the funding, recruitment, training and coordination of interpreters. This study found a correlation between jurisdictions with centralised interpreting agencies and streamlined funding with courts who are more generous in their provision of interpreters and willingness to engage in innovative approaches such as the Northern Territory duty interpreter system. The article identifies service delivery frameworks which are more likely to enhance consistency and competence in court interpreters, concluding that centralised and government-funded agencies are more appropriate than small private for-profit agencies. The issues identified in relation to service delivery models illustrate judicial reliance on the executive branch of government to ensure a fair trial through the provision of interpreters. There are, however, immediate steps available to the judiciary such as a collection of data and implementation of small-scale duty interpreting, which are likely to precipitate more appropriate executive government policy responses to legal interpreting.
{"title":"Judicial reliance on the executive: tensions, discrepancies and recommendations for court interpreter service delivery models across Australian jurisdictions","authors":"Benjamin K. Grimes","doi":"10.1080/10383441.2021.2014773","DOIUrl":"https://doi.org/10.1080/10383441.2021.2014773","url":null,"abstract":"ABSTRACT In the past decade, there has been noticeable improvement in judicial attention and attitudes towards court interpreters, reflected in the implementation of various court interpreter protocols and the Recommended National Standards for Interpreters in Courts and Tribunals. However, this article identifies a number of discrepancies and gaps that still exist in the court interpreting framework in Australia. There are discrepancies across jurisdictions in the types of matters for which the court takes responsibility for engaging and paying for interpreters, and significantly different service delivery models for the funding, recruitment, training and coordination of interpreters. This study found a correlation between jurisdictions with centralised interpreting agencies and streamlined funding with courts who are more generous in their provision of interpreters and willingness to engage in innovative approaches such as the Northern Territory duty interpreter system. The article identifies service delivery frameworks which are more likely to enhance consistency and competence in court interpreters, concluding that centralised and government-funded agencies are more appropriate than small private for-profit agencies. The issues identified in relation to service delivery models illustrate judicial reliance on the executive branch of government to ensure a fair trial through the provision of interpreters. There are, however, immediate steps available to the judiciary such as a collection of data and implementation of small-scale duty interpreting, which are likely to precipitate more appropriate executive government policy responses to legal interpreting.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"71 - 96"},"PeriodicalIF":1.2,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42845705","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10383441.2021.1895469
J. Murphy
ABSTRACT Although not widely publicized or studied, Australian parliaments are increasingly breaking new ground in enacting statutory text in Indigenous languages. There are important public discussions to be had about the symbolic significance of this process and the practical benefits it may reap for language preservation. This article looks at a more technical, but no less important, issue: how Indigenous language statutory text is to be interpreted by English-speaking courts. This issue demands urgent resolution so that interpretative anxieties do not deter continued progress in this field. The potential resolution suggested by this article is that Indigenous language statutory text be interpreted using the same principles applied to non-English treaties. A worked example illustrates how this interpretative approach might work in practice.
{"title":"Expanding the law’s vocabulary – Indigenous-language legislation and multilingual treaty interpretation","authors":"J. Murphy","doi":"10.1080/10383441.2021.1895469","DOIUrl":"https://doi.org/10.1080/10383441.2021.1895469","url":null,"abstract":"ABSTRACT Although not widely publicized or studied, Australian parliaments are increasingly breaking new ground in enacting statutory text in Indigenous languages. There are important public discussions to be had about the symbolic significance of this process and the practical benefits it may reap for language preservation. This article looks at a more technical, but no less important, issue: how Indigenous language statutory text is to be interpreted by English-speaking courts. This issue demands urgent resolution so that interpretative anxieties do not deter continued progress in this field. The potential resolution suggested by this article is that Indigenous language statutory text be interpreted using the same principles applied to non-English treaties. A worked example illustrates how this interpretative approach might work in practice.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"166 - 186"},"PeriodicalIF":1.2,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10383441.2021.1895469","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47728250","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10383441.2021.1996883
A. Grey, L. Smith-Khan
ABSTRACT This article introduces this Themed Issue, Linguistic Diversity as a Challenge to Legal Policy, and reports a small, peer-reviewed study of the integration of research about language issues in legal contexts in Australian legal education. The article explains that interdisciplinary law and linguistics research has emerged to better understand potential inequalities and injustices. This research speaks to concerns shared across many legal systems because both multilingualism and inter-lingual prejudice are common phenomena across nations. The Themed Issue's eleven contributions draw scholarly attention to specific, current problems in legal contexts which relate to language practices and/or policies about language, arranged around the familiar three branches of the state (legislature, executive, judiciary). The Themed Issue is aimed at endowing readers with motivation and basic knowledge to tread new, language-aware routes towards solutions based on collaborative research and policy reform. In regards to integrating such research into legal education, our NSW and ACT study found few course offerings which focus on an intersection of linguistic and legal scholarship. We therefore suggest the development of electives or the inclusion of such material in core subjects (timely given the ‘Priestly 11’ compulsory subjects are under review at the time of writing).
{"title":"Linguistic diversity as a challenge and an opportunity for improved legal policy","authors":"A. Grey, L. Smith-Khan","doi":"10.1080/10383441.2021.1996883","DOIUrl":"https://doi.org/10.1080/10383441.2021.1996883","url":null,"abstract":"ABSTRACT This article introduces this Themed Issue, Linguistic Diversity as a Challenge to Legal Policy, and reports a small, peer-reviewed study of the integration of research about language issues in legal contexts in Australian legal education. The article explains that interdisciplinary law and linguistics research has emerged to better understand potential inequalities and injustices. This research speaks to concerns shared across many legal systems because both multilingualism and inter-lingual prejudice are common phenomena across nations. The Themed Issue's eleven contributions draw scholarly attention to specific, current problems in legal contexts which relate to language practices and/or policies about language, arranged around the familiar three branches of the state (legislature, executive, judiciary). The Themed Issue is aimed at endowing readers with motivation and basic knowledge to tread new, language-aware routes towards solutions based on collaborative research and policy reform. In regards to integrating such research into legal education, our NSW and ACT study found few course offerings which focus on an intersection of linguistic and legal scholarship. We therefore suggest the development of electives or the inclusion of such material in core subjects (timely given the ‘Priestly 11’ compulsory subjects are under review at the time of writing).","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"1 - 17"},"PeriodicalIF":1.2,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44267791","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10383441.2021.2003938
A. Bowen
ABSTRACT It has long been recognised that the right to silence ‘caution’ is difficult to communicate, particularly with some Aboriginal suspects. In a landmark 1976 decision Anunga, the Northern Territory Supreme Court provided guidelines about how police should explain the caution to Aboriginal suspects. As a result, cautions often develop into conversations where police explain the right and test understanding of it. The caution has also been translated into Aboriginal languages, revealing further understandings of its meaning. However, despite strenuous attempts to communicate the caution, it remains confusing for some people. This article reports on linguistic analysis of actual language used to talk about the caution, identifying several ways that communication fails, and revealing more questions than answers about what the caution means. It then argues that policies underlying the caution, and the history of the caution text, are not clear enough to resolve questions about what the caution is supposed to mean and achieve. The caution policy unfortunately creates the appearance of fairness while systematically disadvantaging some Aboriginal (and other) suspects who are partial speakers of standard English and/or not familiar with settler Australian legal culture.
{"title":"Explaining the right to silence under Anunga: 40 years of a policy about language","authors":"A. Bowen","doi":"10.1080/10383441.2021.2003938","DOIUrl":"https://doi.org/10.1080/10383441.2021.2003938","url":null,"abstract":"ABSTRACT It has long been recognised that the right to silence ‘caution’ is difficult to communicate, particularly with some Aboriginal suspects. In a landmark 1976 decision Anunga, the Northern Territory Supreme Court provided guidelines about how police should explain the caution to Aboriginal suspects. As a result, cautions often develop into conversations where police explain the right and test understanding of it. The caution has also been translated into Aboriginal languages, revealing further understandings of its meaning. However, despite strenuous attempts to communicate the caution, it remains confusing for some people. This article reports on linguistic analysis of actual language used to talk about the caution, identifying several ways that communication fails, and revealing more questions than answers about what the caution means. It then argues that policies underlying the caution, and the history of the caution text, are not clear enough to resolve questions about what the caution is supposed to mean and achieve. The caution policy unfortunately creates the appearance of fairness while systematically disadvantaging some Aboriginal (and other) suspects who are partial speakers of standard English and/or not familiar with settler Australian legal culture.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"18 - 49"},"PeriodicalIF":1.2,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47919898","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10383441.2021.1970873
A. Grey, Alyssa A. Severin
ABSTRACT This article reports a 2019–2021 audit of the framework of the NSW government's decisions about their public communications in languages other than English (NSW is an Australian state). It found a dearth of legislation or policy about the language of public government communications, but we present a typology of ways in which NSW law seeks to regulate choice of language in other communications between individuals, non-government entities, and government staff. We then discuss the shortfalls of this decision-making framework, interrogating NSW's statutory Multicultural Principle about linguistic diversity and the haphazard ways that NSW legislation requires language of communication to be considered in relation to the likelihood that an intended audience will understand certain communications. We raise concerns about whether the lack of accountability for non-compliance and leaving the majority of public government communications reliant on informal/reactionary policy is suited to equitably fulfilling the needs of the NSW public. The article closes by arguing that consistent and clear policy to guide the NSW government's public communications would enable the government to more readily meet communicative needs. We thus propose paths for law and policy reform as well as directions for further research aimed at improving government decision-making and communicative efficiency.
{"title":"An audit of NSW legislation and policy on the government’s public communications in languages other than English","authors":"A. Grey, Alyssa A. Severin","doi":"10.1080/10383441.2021.1970873","DOIUrl":"https://doi.org/10.1080/10383441.2021.1970873","url":null,"abstract":"ABSTRACT This article reports a 2019–2021 audit of the framework of the NSW government's decisions about their public communications in languages other than English (NSW is an Australian state). It found a dearth of legislation or policy about the language of public government communications, but we present a typology of ways in which NSW law seeks to regulate choice of language in other communications between individuals, non-government entities, and government staff. We then discuss the shortfalls of this decision-making framework, interrogating NSW's statutory Multicultural Principle about linguistic diversity and the haphazard ways that NSW legislation requires language of communication to be considered in relation to the likelihood that an intended audience will understand certain communications. We raise concerns about whether the lack of accountability for non-compliance and leaving the majority of public government communications reliant on informal/reactionary policy is suited to equitably fulfilling the needs of the NSW public. The article closes by arguing that consistent and clear policy to guide the NSW government's public communications would enable the government to more readily meet communicative needs. We thus propose paths for law and policy reform as well as directions for further research aimed at improving government decision-making and communicative efficiency.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"122 - 147"},"PeriodicalIF":1.2,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42436004","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10383441.2021.1900031
L. Smith-Khan
ABSTRACT Registered Migration Agents (RMAs), the practitioners who assist with Australian visa applications and appeals, play a crucial role in navigating these complex legal procedures. RMAs’ registration requirements, including those relating to English language proficiency (ELP), have thus garnered much attention, leading to government-commissioned reviews and inquiries, and amendments to regulations. The most recent changes have attracted scrutiny by the Australian Parliamentary Joint Committee on Human Rights, due to the unequal burden to prove ELP placed on different applicants based on their backgrounds. However, these new requirements ultimately came into force without the government satisfying the Committee that they were human rights-compliant. This article examines the most recent ELP rules for RMAs and the Immigration Minister’s justifications for these. Drawing on sociolinguistic scholarship, it finds that rules requiring general ELP tests, and categorically exempting certain applicants from testing, rely on problematic assumptions about the nature of language, and are therefore unnecessarily discriminatory. Given the government aims to ensure specific communicative competencies within the migration advice setting, the analysis concludes that these specific competencies should be the focus of any required assessment.
{"title":"‘Common language’ and proficiency tests: a critical examination of registration requirements for Australian registered migration agents","authors":"L. Smith-Khan","doi":"10.1080/10383441.2021.1900031","DOIUrl":"https://doi.org/10.1080/10383441.2021.1900031","url":null,"abstract":"ABSTRACT Registered Migration Agents (RMAs), the practitioners who assist with Australian visa applications and appeals, play a crucial role in navigating these complex legal procedures. RMAs’ registration requirements, including those relating to English language proficiency (ELP), have thus garnered much attention, leading to government-commissioned reviews and inquiries, and amendments to regulations. The most recent changes have attracted scrutiny by the Australian Parliamentary Joint Committee on Human Rights, due to the unequal burden to prove ELP placed on different applicants based on their backgrounds. However, these new requirements ultimately came into force without the government satisfying the Committee that they were human rights-compliant. This article examines the most recent ELP rules for RMAs and the Immigration Minister’s justifications for these. Drawing on sociolinguistic scholarship, it finds that rules requiring general ELP tests, and categorically exempting certain applicants from testing, rely on problematic assumptions about the nature of language, and are therefore unnecessarily discriminatory. Given the government aims to ensure specific communicative competencies within the migration advice setting, the analysis concludes that these specific competencies should be the focus of any required assessment.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"97 - 121"},"PeriodicalIF":1.2,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10383441.2021.1900031","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48076148","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10383441.2021.1932234
Jinhyun Cho
ABSTRACT The paper examines the operation and impact of monolingual ideologies relating to English in interpreter-mediated courtrooms in Australia. This is an issue relevant to courts in many geographical places, especially in Anglophone nations with common law systems. Using recurrent thematic analyses, the paper draws on interviews with 36 court interpreters working in Australia. From the perspective of legal interpreters, the paper explores three specific language ideologies linked to a ‘monolingual mindset’ [Michael Clyne (2005) Australia's Language Potential, UNSW Press.] of courtrooms: accent as a key marker of Australian English according to standard language ideologies; monolingual assumptions that there is only one version of each language; and negative perceptions of the bilingual abilities of court participants from minority backgrounds. The findings illustrate the ‘us-them’ distinction as both a cause and an outcome of the perpetuation of monolingual ideologies, which, in turn, feed into the conditions for the production and reproduction of existing power structures and ideological uses of language, with ramifications for the fairness and justice of legal processes. The paper concludes by highlighting the pervasiveness of monolingual ideologies in courtrooms, the need for multilingual and multicultural training of legal professionals and the relevance of collaboration between interpreters and legal professionals to addressing monolingualism in Australian courtrooms.
摘要本文考察了与英语相关的单语意识形态在澳大利亚口译员调解法庭中的运作及其影响。这是一个与许多地理位置的法院相关的问题，尤其是在英美法系的英语国家。本文采用反复专题分析法，对在澳大利亚工作的36名法庭口译员进行了访谈。从法律口译员的角度，本文探讨了与法庭“单语心态”相关的三种特定语言意识形态[Michael Clyne（2005）Australia’s language Potential，UNSW Press.]：根据标准语言意识形态，口音是澳大利亚英语的关键标记；单语假设每种语言只有一个版本；以及对少数族裔背景的法庭参与者的双语能力的负面看法。研究结果表明，“我们-他们”的区别既是单语意识形态长期存在的原因，也是其结果，这反过来又为现有权力结构的产生和复制以及语言的意识形态使用创造了条件，并对法律程序的公平和正义产生了影响。论文最后强调了法庭中单语意识形态的普遍性，对法律专业人员进行多语言和多文化培训的必要性，以及口译员和法律专业人员之间的合作对解决澳大利亚法庭单语问题的相关性。
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